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Proposed changes to OSHA that are now working their way through Congress, including increased penalties, focus on punishing employers and will not improve workplace safety and health, a representative of a coalition of employer groups testified Tuesday.

“Penalties alone will not improve workplace safety—remember, in most cases, penalties are imposed after the fact of an injury or fatalities,” said Jonathan Snare, speaking for the Coalition of Workplace Safety, which includes the U.S. Chamber of Commerce and other employer groups. He was testifying before the House Education and Labor Committee.

“The critical mission of OSHA is to assist employers to make sure these injuries and fatalities never occur in the first place. … This approach can be achieved by using existing programs that offer compliance assistance, outreach, and training.”

David Michaels, Assistant Secretary of Labor of OSHA, had a different point of view.

“Safe jobs exist only when employers have adequate incentives to comply with OSHA’s requirements,” he said. “Those incentives are affected, in turn, by both the magnitude and the likelihood of penalties.”

Snare and Michaels disagreed on a number of other proposed amendments to the OSHA Act, which have been merged into a bill that would make changes to the Mine Safety and Health Act:

• Rules that would no longer grant employers an automatic stay of requirements that they abate an OSHA violation that they are contesting:

  Michaels said the change was needed among other reasons because OSHA is often forced to negotiate a reduction in penalties in order to obtain agreement from an employer to correct a hazard while a violation is under contest. As a result, he said, “the average current OSHA penalty is only around $1,000.”

  But Snare said: “Abatement is more than just protecting against a hazard; it is part of accepting responsibility for the violation. Mandating abatement before allowing the employer to exhaust their adjudicative process would be like asking a criminal or civil defendant to pay a fine or serve a sentence before the trial is held.”

• Increased protection for whistleblowers:

  
  Michaels said the proposed changes would bring whistleblower provisions in the OSHA Act in line with whistleblower provisions for other agencies.

  “The proposed legislation would prohibit employers from discouraging the reporting of
  work-related injuries and illnesses by employees,” Michaels said. “OSHA is strongly committed to accurate reporting of both injuries and illnesses.”

  But Snare said the proposals would “create additional complicated and costly procedures for adjudicating whistleblower cases, without any evidence or justification that the existing protections available to employees under Section 11(c) of the OSH Act are somehow deficient. The CWS is also concerned with other proposals in Section 701 which are overly punitive on employers and will benefit no one, aside from trial lawyers.”

As I said in a previous blog posting, this bill would radically alter the OSHA landscape. Employers would be well advised to follow the bill’s progress closely and begin examining their safety programs in light of changes that would occur if the bill is passed.

To read the full text of Snare’s statement, click here.

For Michaels’s statementclick here.

The Education and Labor Committee is likely to vote on the bill in the next few days and the full House may vote by the end of the month.

To keep up with this bill, as well as the administrative steps OSHA is taking to step up enforcement, subscribe to our blog and have it delivered automatically to your mailbox or Reader.

As I wrote in an earlier post legislation is moving through the House of Representatives that would dramatically change the OSHA Act, increasing protection for whistleblowers and making officers and directors subject to criminal liability for OSHA violations in certain situations.

The bill would also greatly reduce an employer’s ability to delay abatement of contested violations.

Attorneys at the firm of Morgan Lewis have written an excellent article with additional details about the implications of the bill.

Morgan Lewis says, and I agree, that employers need to pay close attention to the proposed law and the impact it could have on their operations. Employers also need to be reviewing their health and safety programs in light of the dramatic changes that could come.

Prison terms of up to 10 years could be imposed on officers and directors of companies that knowingly violate OSHA rules under a proposed revision to the Occupational Safety and Health Act now advancing through Congress.

The 10-year term would apply in situations where a violation contributed to the death of an employee. The current maximum sentence under the OSHA act is six months and the law does not specify that officers and directors can be held criminally responsible.

Employers need to pay close attention to this bill since the provision on criminal penalties is only one of several proposed enforcement changes in the bill that would radically alter the occupational safety and health landscape for employers. In my view the bill would significantly change OSHA as we now know it.

The proposed measure is in keeping with the Obama administration’s philosophy of substantially increasing enforcement, which OSHA has already been carrying out administratively in such areas as training, recordkeeping, ergonomics and severe violations.

The proposed revisions to the law, introduced as the Protecting America’s Workers Act, have been percolating for months. But it now appears that the House Education and Labor Committee will hold a hearing on the bill on July 13, followed soon after by a committee vote. The bill could reach the floor of the House by the end of the month.

The bill originally was a standalone measure, but now has been combined with a bill to make changes in the Mine Safety and Health Administration. Pressure is strong to change MSHA because of the fatal accident that occurred earlier this year at a Massey Energy Co. mine in West Virginia and that in turn makes it more likely that changes to OSHA will pass as well.

One especially significant change to the OSH Act would allow officers and directors to be held criminally liable In cases where they had knowledge of violations that led to a fatality. The law currently states that an employer may be held criminally liable, but the definition of an employer is vague enough that it rarely is enforced against individual managers. The new bill specifies that the term “employer” means officers and directors.

Other changes In the bill:

• Employers would be required to immediately begin abating serious, willful or repeated violations. Currently abatement requirements are automatically stayed if an employer contests a violation. Under the bill, employers who want a stay would have to ask for one from the Occupational Safety and Health Review Commission. (I call this provision the “guilty until you prove yourself innocent” clause.)
• Protections for “whistleblower” employees would be significantly strengthened. It appears to me that the bill would make it virtually impossible for employers to discharge an under-performing employee for cause if that employee makes any kind of complaint about safety conditions, warranted or not. This has a potential to severely inhibit employers’ ability to hold employees and managers accountable.
• Prison terms of up to five years could be imposed on any officer or director of a company that knowingly violates any OSHA standard, rule or order if that violation contributes to serious bodily harm to an employee. Currently there is no provision in the OSHA act for a prison term in such situations.
• The maximum civil penalty for willful and repeated violations would increase from $70,000 to $120,000. If the violation resulted in a death, the maximum penalty could be $250,000.
• The maximum civil penalty for serious violations would increase from $7,000 to $12,000. However, if the serious violation resulted in a death, the maximum penalty could be $50,000.
• The maximum civil penalty for other-than-serious violations would also increase from $7,000 to $12,000.
• Minimum and maximum penalties would be adjusted for inflation at least once every four years beginning in 2015.

For tips on how to prepare your company for increased OSHA scrutiny, see my article “How to meet the challenge of greatly increased OSHA enforcement.”